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Supreme Court signals it will dismiss major climate-change case

The U.S. Supreme Court signaled Tuesday it
will dismiss a major climate-change case, with justices indicating that
the Environmental Protection Agency (EPA) rather than the courts should address greenhouse-gas emissions
from major power plants.

"Congress set up the EPA to promulgate standards for emissions, and the relief you're seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA," Justice Ruth Bader Ginsburg said Tuesday.

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The Supreme Court heard oral arguments Tuesday in the case — American Electric Power Co. v. Connecticut — which has pitted five major power companies and the federally operated Tennessee Valley Authority against six states, New York City and a handful of private land trusts. The states are suing the companies for emitting massive amounts of greenhouse gases, arguing the emissions harm public health.

The case has entangled the Obama administration, which, in defending its Tennessee Valley Authority, has also come to the defense of some of the country's major coal-burning power companies, including Xcel Energy and Duke Energy. But the administration is not arguing against limits on greenhouse-gas emissions; instead, it is calling on the court to give deference to the EPA's pending climate regulations.

At issue is whether states can show sufficient harm to force major power companies to reduce their greenhouse gas emissions; whether the states’ lawsuit is overtaken, or “displaced,” by EPA climate regulations; and whether the courts should weigh in on the issue at all, or leave it to the executive and legislative branches of government.

The case deals with a series of big-picture issues that have come to the forefront of U.S. politics as the EPA begins to implement climate rules and Republicans and some Democrats in Congress seek to block or limit the agency’s authority to do so.

The case comes after the Supreme Court ruled in 2009 that greenhouse-gas
emissions could be regulated under the Clean Air Act if EPA found
they endanger public health and welfare. The high court's decision formed the underpinning for its authority to issue
climate regulations.

During questioning Tuesday, many of the justices asked about whether EPA climate regulations have displaced the need for the courts to limit greenhouse-gas emissions on behalf of the states.

Ginsburg suggested the court would be stepping on the toes of the EPA by limiting power companies’ greenhouse-gas emissions.

“You want the court to start with the existing sources, to set limits that may be in conflict with what an existing agency is doing,” Ginsburg said. “Do we ignore the fact that the EPA is there and that it is regulating in this area?”

Other justices highlighted the difficulty of connecting greenhouse gases to any individual power company once they are emitted into the atmosphere.

“What percentage of worldwide emissions, every one of which I assume harms your clients, do these five power plants represent?” Chief Justice John Roberts asked.

Justice Elena Kagan raised concerns about the enormity of the case, arguing that the states are asking the court to weigh in on a major policy issue.

“[M]uch of your argument depends on this notion that this suit is really like any other pollution suit, but all those other pollution suits that you've been talking about are much more localized affairs — one factory emitting discharge into one stream,” Kagan said. “They don't involve these kinds of national/international policy issues of the kind that this case does”

And Justice Samuel Alito asked about the potential for the case to set a precedent that would lead to future lawsuits resulting in a series overlapping court-ordered emissions standards.

“Even if you won and the district court imposed some sort of limit, would there by any other obstacle to other plaintiffs bringing suits and another district court issuing a different standard?” Alito said.

The Obama administration has gotten ensnared in the case, as the government-operated Tennessee Valley Authority is also being sued by the states.

Gen. Neal Kumar Katyal, acting solicitor general at the Department of Justice, representing the Tennessee Valley Authority, argued Tuesday that the case should be dismissed because it is nearly impossible to directly link greenhouse-gas emissions back to the five power companies in question.

The case, Katyal argued, is one of the broadest that has ever come before the Supreme Court.

“In the 222 years that this court has been sitting, it has never heard a case with so many potential perpetrators and so many potential victims, and that quantitative difference with the past is eclipsed only by the qualitative differences presented today,” Katyal said.

Climate change is a global issue that must be addressed on a broad scale, Katyal argued.

“The very name of the alleged nuisance, global warming, itself tells you much of what you need to know. There are billions of emitters of greenhouse gasses on the planet and billions of potential victims as well.”

Paul Keisler, representing the petitioners Tuesday, argued that the case should be dismissed because the states are calling on the courts to make a policy determination about greenhouse-gas emissions.

“The states ask that the courts assess liability and design a new common law remedy for contributing to climate change, and to do so by applying a general standard of reasonableness to determine for each defendant, in this case and in future cases, what, if any, its share of global reductions in greenhouse-gas emissions ought to be,” Keisler said.

“That would require the courts not to interpret and enforce the policy choices placed into law by the other branches, but to make those policy choices themselves.”

But Barbara Underwood, solicitor general for the state of New York, representing the plaintiffs, argued that states should step in to work to reduce greenhouse gas emissions while the EPA’s climate regulations are being developed.

“This case rests on the longstanding fundamental authority of the states to protect their land, their natural resources and their citizens from air pollution emitted in other States,” Underwood said.